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Mohammed Sheriff Sahib (Died) and ors. and Aswath Vs. Mumtaz Begum Sahiba and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1973)1MLJ165
AppellantMohammed Sheriff Sahib (Died) and ors. and Aswath
RespondentMumtaz Begum Sahiba and ors.
Cases ReferredSethumadhava Ayyar v. Bacha Bibi
Excerpt:
- g. ramanujam, j.1. these are two appeals filed by the third and 12th defendants respectively in o.s.no. 538 of 1960 on the file of the city civil court, madras. that was a suit filed by one mumtaz begum sahiba, the first respondent in both the appeals for partition of the suit property and for separate possession of her 1/36th share therein as also for mesne profits. the genealogy given below shows the relationship between the parties. sheriff ahmed sahib=wife, (died 1.1-4-27)... (died 21-8-1910)sheriff ameerullah rahmatunnissa kubra begum = md. sheriff sahib (d-3 khader mohideen(d-1 died after suit) begum (d-2 pre-deceased first died 17-9-1968) (mahboob sheriff saheb sheriff (died | alive wife. b1-a2 (2nd wife) (died before (before suit) | | | suit mumtaz begum | | | | (plaintiff)......
Judgment:

G. Ramanujam, J.

1. These are two appeals filed by the third and 12th defendants respectively in O.S.No. 538 of 1960 on the file of the City Civil Court, Madras. That was a suit filed by one Mumtaz Begum Sahiba, the first respondent in both the appeals for partition of the suit property and for separate possession of her 1/36th share therein as also for mesne profits. The genealogy given below shows the relationship between the parties.

Sheriff Ahmed Sahib=Wife,

(died 1.1-4-27)... (died 21-8-1910)

Sheriff Ameerullah Rahmatunnissa Kubra Begum = Md. Sheriff Sahib (D-3 Khader Mohideen

(D-1 died after suit) Begum (D-2 pre-deceased first died 17-9-1968) (Mahboob Sheriff Saheb Sheriff (died

| alive wife. B1-A2 (2nd wife) (Died before (before suit)

| | | suit Mumtaz Begum

| | | | (Plaintiff).

_____________________________________ | | | |

| | | | | | | |

Mumtaz Begum Jeelani Begum Hussain Begum | | | |

D-13 (D-14 D-15 | | | |

| | | |

___________ _____________________ | |

| | | | | | |

Tajuddin Hilajus Gulab Ali Shahjehan Begum | |

(A-3) Azama (A-4) Begum Dulagi | |

(A-5) (A-6) Begum | |

(A-7) | |

| |

| |

_______________________________ |

| | | |

Hussain Razack Pasha Begum |

Sheriff Sheriff (D-6) |

(D-4 died) (D-5) |

| |

| |

| __________________________

| | |

| Dr. Sardar Ahmed Sheriff

| Jehan Begum (D-8)

| (D-7)

|

_________________________

| | |

A. Sheriff Begum Amma

Sahib (D-9) Pasha Pusha

(D-10) (D-11)

D-12 Aswath the third party purchaser.

N.B.-Maha Boob B1, the widow and Tajuddin, Gulab Ali, Hila lus Azama,

Shah Jehan Bepum, and Dulari Begum, the minor children of D-3,

Md. Sheriff Appellant,are the present appellants.

The circumstances in which the plaintiff made such a claim are there. The plaintiff is the widow of one, Mohideen Sheriff Sahib whose other three sons are the first defendant who died during the pendency of the suit and whose legal representatives are defendants 13 to 15, Khader Sheriff (deceased) whose legal representatives are defendants 4 to 6 and Mohammed Sheriff, the third defendant. Defendants 7 and 8 are the sons of the plaintiff. The second defendant if the only daughter of Sheriff Ahmed Sahib. The fourth defendant also died during the pendency of the suit and his legal representatives are defendants 9 to 11. The 12th defendant is an alienee of a portion of the suit property from the third defendant. It was the plaintiff's case that the suit property originally belonged to Shariff Ahmed Sahib, that on his death it devolved on his four sons and daughter, that she, as the widow of one of the sons was entitled to a share in the suit property that the third defendant who happened to be in the management of the suit property had falsely set up an oral gilt (hiba) in his favour by his late father, that the said gift was neither true nor valid and that the purported sale by the third defendant in favour of the. 12th defendant of a portion of the suit property was not binding on her and other sharers. She therefore claimed the relief of partition and separate possession of her share in the suit property.

2. The first defendant after filing a writ-ten statement supporting the plaintiff's claim died pending the suit. Except defendants 3 and 12 the other defendants either remained ex parte or supported the case of the plaintiff. The third defendant resisted the suit contending that his father has made a valid gift, of the suit property in his favour a few months prior to his death, that ever since the date of the said gift he was in exclusive possession and enjoyment of the property in his own right .and that, in any event, he has acquired valid title to the suit property by adverse possession. The 12th defendant who is an alienee from the third defendant of a portion of the suit property claimed that he is a bona fide purchaser for value from the third defendant without any notice of the alleged rights of the plaintiff and others and that, therefore, he is entitled to the benefits of Section 41 of the Transfer of Property Act.

3. The trial Court found, on a consideration of the evidence, that the third defendant was a major at the time of the alleged oral gift, by the father and that the third defendant was in possession of the suit property ever since the date of the said gift and that, in any event, he had acquired title to the suit properly by adverse possession. It also accepted the claim of the 12th defendant that he is a bona fide purchaser for value without notice of the plaintiff's rights and that, therefore, he was entitled to the benefit of Section 41 of the Transfer of Property Act. In that view it dismissed the plaintiff's suit.

4. On appeal, however, the lower appellate Court found on a fresh appraisal of the evidence that the third defendant was a minor at the time of the alleged oral gift by the father, disagreeing with the finding given by the trial Court that the third defendant was a major at that time. The question whether the third defendant was a minor at the relevant time being a finding of fact, I have to proceed on the basis of the finding given by the lower appellate Court. The lower appellate Court went into the question as to whether the oral gift set up by the third defendant has, in fact, been established. After analysing the evidence on this aspect, the lower appellate Court held that the factum of oral gift has not been duly established. It further went into the question as to whether in any event the alleged oral gift would be legally valid, and found that in view of the fact that the third defendant having been a minor at the time of the oral gift, he could not have validly accepted the same. The following observations of the lower appellate Court shows how the question of the validity of the gift was dealt with:

One of the essentials which the third defendant has to establish to sustain the case of gift is that he accepted the gift even if it is true, for, at the time of the alleged gift he was a minor. Even conceding for the sake of argument that he was a major at the time of the alleged gift, it is necessary to examine whether there was a valid acceptance.

Then it considered the evidence of the third defendant himself and found that even on his own admission in cross-examination that he took possession of the suit property only after the death of his father, it must be held that there was no acceptance of the gift by the third defendant during the donor's lifetime. The lower appellate Court, however, did not permit the third defendant to put forward a new plea that he was a minor at the time of the gift and that, therefore, his father, the donor, accepted the gift and continued in possession on his behalf, on the ground that a person having put forward the case that he accepted the gift on the basis that he was a major cannot be allowed to give up that case and put forward a new case that he was a minor at the time of the gift and that someone accepted the gift on his behalf or that the donor continued in possession after the date of the alleged gift on behalf of the donee.

5. It is not possible for me to uphold the view of the lower appellate Court on this aspect of the case, that is, on the question of the alleged gift being invalid on the ground that the third defendant was a minor at the time of the gift and that, therefore, there could not have been any -valid acceptance by him, to make the gift valid. Even on the basis of the finding of the lower appellate Court that the third defendant was a minor at the time of the gift, the validity of the gift cannot be assailed merely on the ground that there, was no acceptance on behalf of the minor. It is true that the three essentials to the validity and completion of the gift are; (1) declaration of gift by the donor; (2) an acceptance of the gift, express or implied by or on behalf of the donee; and (3) delivery of possession of the subject of the gift by the donor to the donee. But there is an exception to this general rule in the case of gifts made to a minor by the father. Mulla in his treatise on Principles of Mahomedan Law, 16th edition, in paragraph 155 dealing with gifts to a minor by father or other guardian says : .

No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give.

In paragraph 156, dealing with gifts made to a minor by a person other than his father or guardian, it is stated that:

A gift to a minor or to a lunatic by a person other than his father or guardian may be contemplated by delivery of possession to the father or guardian. A gift will also be complete when a minor, who has attained discretion, himself takes possession.

The above passages indicate that in cases of gifts to a minor by the father, no delivery of possession is required and that in cases of gifts to a minor by a person other than the father or guardian, the gifts could be accepted by the minor if he has attained discretion or by the father or guardian on his behalf. In Ameeroonnissa v. Abadoonnissa (1874) 2 I.A. 87, it has been stated:

Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor.

In Alamanayakunigari Nabi Sab v. Murukuti Panish (1915) 29 M.L.J. 733 : 29 I.C. 439, it has been observed:

The rules of law relating to possession appear abstruse and complex owing to the failure to direct the enquiry to the ultimate use to which the subject of gift has been put and to determine whether or not it was the donee who has derived benefit from the property after the gift. The law is not made up of unmeaning technicalities. It is not abstruse and removed, from the common course of events and human conduct.

In Katheessa Umma v. Narayanath Kunhama : [1964]4SCR549 , the Supreme Court, while dealing with a case of a gift by a Mahomedan husband to his minor wife, expressed the view that as the intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over to the mother of the minor in whose charge the minor wife was living at that time, the gift was valid even without actual transfer of possession. In Azeshabi v. Kathoonbi : AIR1966Mad462 , Ramamurti, J., has gone to the extent of holding that the minor could himself accept the gift and take possession, that under the Mahamadan law a donee of a gift was not precluded by minority from accepting the gift, and that where the document, embodying the intention of the donor to give the property in gift was delivered by the donor to the donee and accepted by him it amounted to acceptance of the gift on his part. The learned Judge has relied on the following observations of Tyabji, J., in Mt. Fatma v. M. Autun A.I.R. 1944 Sind 195.

There is nothing in the Mohamedan law or outside it which prevents a minor from accepting a gift or taking possession of property. The principle of Mohamedan law which requires a gift to be completed by a transfer of possession applies equally to movable and immovable property. No one would contend that a gift of a book or a jewel delivered by the donor to the minor and accepted by the minor was not completed and not valid because it was not taken and accepted by the minor's guardian. There is no reason for holding that the case is different when the property gifted is a piece of land or a house of which a minor has in fact taken possession.

A Division Bench of this Court Chamurnnissa Begum v. Fathima Begum : AIR1968Mad367 , after stating the three essential requisites for a valid gift under the Mahomedan law 10 be : (i) declaration of gift by the donor ; (2) acceptance of the gift, express or implied, by or on behalf of the donee; and (3) delivery of such possession of the subject of the gift by the donor to the donee as the subject of gift is susceptible of laid down that in the case of a gift by the father to his minor child or by a legal guardian to his ward all that is necessary is to establish a bona fide intention to give and no change or transference of possession is necessary. In Ibrahim Bivi v. Pakkir Mohideen : AIR1970Mad17 , Alagiriswami, J., had also expressed the view that there is no warrant for the contention that under Mahomedan law whatever may be the subject-matter of the gift and whatever maybe the circumstances in which the gift is made, it the donee happens to be a minor, there should be delivery of possession to the guardian of the minor, that there is nothing in principle or in the decisions which compels the view that regardless of the father's indifference, his wayward habits and other adverse factors, any person who desires to make a gift to the minor son could do so only by delivering the property to such a father, that it is not necessary that in all cases the donor should hand over possession to the natural guardian of the minor donee, and that in proper circumstances the donor can either constitute himself as the guardian or indicate some person, other than the natural guradian of the minor, as the guardian of the minor's property and hand over possession to such guardian if circumstances are such as to justify such a course of action. In view of the above well established principle that where the gift is by a Mahomedan father to his minor son there need not necessarily be any delivery or transference of possession, the view taken by the lower appellate Court that as the third defendant was a minor at the time of the alleged gift, and there being no evidence of the father constituting himself as the guardian of the minor and taking possession on his behalf, the alleged gift should be held to be invalid, cannot be accepted.

6. However, the question remains as to whether the truth of the oral gift has been established in this case. The lower appellate Court has, as already stated, found that the truth of the gift has not been established. For a valid gift the essential and primary requisite is a declaration of gift by the donor, and it is necessary therefore, for the third defendant to establish a bona fide intention on the part of his father to give the property to him. In this case there is no direct evidence of the gift. Admittedly there is no document in writing to evidence the donor's declaration, or his intention to give the property to the third defendant which is the essential ingredient in the case of a gift. Nor is there any evidence as to when, where, and in whose presence the alleged donor had made the declaration of gift in favour of the third defendant. The gift is said to have been made by the donor just a few months before his death. There was some controversy as to when the donor died. The third defendant himself at one stage stated that his father, the donor died in the year 1928. Later when he was confronted with certain documents, he admitted that his father died on 11th April, 1927. If according to him the gift was a few months before his father's death, it should have been in the year 1926. As already stated there is no direct evidence of any intention of the father to give the property exclusively to the third defendant. On the date of the alleged gift, the original owner, Shariff Ahmed Sahib had four sons and a daughter, and there is no reason as to why he intended to give the suit property which is the only property he had to the third defendant exclusively. Besides, in a portion of the suit property there is a durga and a graveyard. Unless a clear intention on the part of the donor to confer an exclusive benefit on the third defendant is proved, it is difficult to assume that the donor wanted to give an exclusive right to the third defendant in respect of the 1/4th cawni of land wherein a durga and a graveyard had been located. Usually the durga and graveyard would have been kept for the benefit of all the members of the family, and there should be some special reason shown as to why the father should give it exclusively to one out of the four sons. The explanation given by the third defendant is that while all the others were employed and he alone was young and unemployed, the father bona fide intended to make the gift of the suit property exclusively for his benefit. But, there is absolutely no evidence from which such an intention on the part of the donor could be inferred. The only documents produced before the Court as establishing the alleged oral gift are Exhibits B-2 to B-5. Exhibit B-5 is a patta for fasli 1354 regarding the suit property issued by P.W. 4, the then landholder--Adayar Zamin in the name of the third defendant. Exhibit B-3 is a letter dated 26th October, 1949 by the first defendant in favour of the third defendant admitting the third defendant's right to the property as a donee from the father. Exhibit B-4 is an affidavit dated 23rd October, 1959 by the first defendant wherein he has again affirmed the third defendant's title to the suit land under an oral gift from the father. Exhibit B-2 is another affidavit dated 22nd January, 1960 executed by one Kassim Ali, that the former Zamindar of Adayar village, had stated that' he had transferred the patta No. 14 standing in the name of Shariff Ahmed Sahib in respect of the suit property to the third defendant as per the request of the former, and that he was informed by Shariff Ahmed Sahib that he had gifted the suit property to the third defendant. But there is no explanation in the affidavit as to when exactly the patta was transferred, nor any patta in the name of the third defendant after such transfer had been produced. The earliest patta produced is Exhibit B-5 of the year 1944 issued by P.W. 4. The question is how far the above documents establish the case of oral gift alleged in favour of the third defendant.

7. It cannot be in dispute that the burden of establishing the case of oral gift is on the third defendant who claims exclusive right to the property on the basis of such gift. Even the written statement filed by the third defendant is absolutely vague as to the exact date of the gift and the date of death of his father. There is absolutely no evidence as to the state of mind of the alleged donor at the relevant time. It is also significant to find that there is no iota of evidence to show that at any time Shariff, who is admittedly an educated and English knowing man and who lived up to the age of 81, expressed his intention to any one to make a gift of the suit property in favour of the third defendant. It has been admitted by the third defendant in cross-examination that his father was managing the suit property till his death and that only after his death he came to take possession of the same. The question is whether merely on the strength of the two affidavits Exhibits B-2 and B-4 and the letter Exhibit B-3 and the patta Exhibit B-5 of the year 1944 the third defendant can be said to have established the oral gift which he pleads. There was considerable controversy as to whether the affidavits Exhibits B-2 and B-4 and the letter Exhibit B-3 are admissible in evidence and as to their evidentiary value before the Courts below. Though the trial Court accepted these documents as relevant, the lower appellate Court took the view that evidentiary value of these documents is practically nil. As a matter of fact, the lower appellate Court specifically says that the document, Exhibits B-3 and B-4 are utterly unreliable, as it has not been explained by the third defendant as to the circumstances under which these documents were obtained. As pointed out by the Judicial Committee in Kamar-Unnissa Bibi v. Hussaini Bibi I.L.R. (1881) All. 266 whenever an oral gift is set up after the death of the alleged donor, the Court is bound to watch with the greatest care, perhaps even with suspicion, if the case had rested upon the oral testimony alone.

8. I am inclined to agree with the approach made by the lower appellate Court in its appreciation of the oral evidence in the case to find out whether the truth of the oral gift has been established. In this case apart from the evidence of the third defendant there is practically no other independent oral evidence to establish the oral gift, and the only material on which the Court is asked to infer an oral gift are the documents set out above. On the. question whether the affidavits Exhibits B-2 and B-4 and the letter Exhibit B-3 are admissible in evidence, the learned Counsel for the appellant refers to Sections 13 (a) and 32 (7) of the Evidence Act and relies on the decision in Periasami v. Varadappa : AIR1950Mad486 , wherein Raghava Rao, J., held that the term 'transaction' in the realm of law, is an act affecting the legal rights and is not confined to a dealing with property between two persons inter vivos but can, without any strain on the language, be taken to include a testimony dealing with the property. In that case a statement made in a will by a testator that the property dealt with thereunder is his property was held to be admissible in evidence under Section 13 (a), as also under Section 32 (7) of the Evidence Act. Taking support, from that decision, Mr. Ahmed Meeran contends that the affidavits and the letter should be taken as transactions coming within the scope of Sections 13 (a) and 32 (7) of the Evidence Act. But it appears to be unnecessary to go into the admissibilily of these said documents in detail, as in my view, even if they are relevant they are not sufficient to establish the factum of gift by the father in favour of the third defendant. These affidavits and letter are said to have been taken from the first defendant and another, as the third defendant wanted to mortgage or sell the property. But nothing happened till the third defendant sold a portion of the property to the 12th defendant just before the suit. The first defendant is only one of the four sons and it is not stated as to why the affidavit and letter was taken only from him. If really the third defendant wanted his title based on the oral gift affirmed, normally he should take such letters or release deeds from the other sons and daughter of Shariff Ahmed Sahib. As a matter of fact, the affidavit and the letter given by the first defendant is attacked by the plaintiff on the ground that they have been obtained from him; by exercise of undue influence and coercion, taking advantage of his old age and impecunious circumstances. Of course, the third defendant has denied that there was any undue influence exercised on the first defendant, while getting the affidavit; and the letter. But the first defendant himself has filed a written statement in this suit to the effect that the letter and the affidavit had been taken from him under undue influence and duress. But, unfortunately he died before the trial could commence. The lower appellate Court comments on the fact that the third defendant has not denied specifically the plaintiff's averments that the affidavit and the letter Exhibits B-4 and B-3 respectively have been obtained from the first defendant by undue influence and coercion and that the written statement of the third defendant is quite silent about it. The learned Counsel for the appellant (third defendant) very strenuously criticises that observation of the lower appellate Court and states that there are no clear averments and allegations of coercion and undue influence in the plaint and that, therefore, the third defendant is not called upon to specifically deny the same.

9. The learned Counsel refers to the decision in Bharat Dharma Syndicate v. Harish Chandra and Bishundeo v. Seogeni Rai : [1951]2SCR548 , in support of his proposition that unless there are specific and definite allegations in relation to fraud and undue influence and there is a specific issue in that regard, it is not necessary for the opposite party to adduce evidence in rebuttal. In Bharat Dharma Syndicate v. Harish Chandra , it has been observed that where a litigant prefers charges of fraud or other improper conduct against the other party the Tribunal which is called upon to decide such issues should compel that litigant to place on record precise and specific details of those charges and this practice should be insisted upon by the Court even if no objection has been taken by the other parties who are interested in disproving the accusations. In Bishundeo v. Seogeni Rai : [1951]2SCR548 , their Lordships of the Supreme Court had laid down that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid, that there can be no departure from them in evidence and that general and vague allegations are insufficient even to amount to an averment of fraud, coercion and undue influence of which any Court ought to take notice however strong the language in which they are couched may be. It is a well established rule that wherever a party sets up fraud, undue influence and coercion as vitiating a particular document, the allegations should not be vague and indefinite but should be specific and clear. But in this case we are not concerned with any document of title. The plaintiff merely anticipates that the third defendant might rely on the affidavits and the letter referred to above and states that those documents could not be accepted on their face value in view of the fact that they have been procured under certain vitiating circumstances. It is for the third defendant, who invites the Court to accept the same as a strong piece of evidence in his favour to prove the truth of the gift to establish that they were taken from the first defendant and another in the usual and normal course. I am, therefore, in entire agreement with the view taken by the lower appellate Court that the truth of the oral gift set up by the third defendant has not been established.

10. The next question is whether the third defendant has perfected title to the suit property by adverse possession. It is the case of the third defendant that he has been in exclusive possession of the suit property ever since the date of death of his father and that, therefore, his possession should be taken to be adverse to that of his brothers and only sister. He relies on the patta issued by the Settlement Authorities. But, it is seen that on the objections taken by some of the brothers of the third defendant the patta has been transferred in the joint names of all the heirs of Sheriff Ahmed Sahib in appeal by the Settlement Officer, and the third defendant is canvassing the issue of joint patta before the Board of Revenue. It is the case of the plaintiff that the third defendant has not been in exclusive possession of the suit property but he was in management on behalf of the other sharers. But there is no evidence on the side of the plaintiff to show that the other sharers ever contributed to the expenses or received their share of the income from the third defendant. There is however, no evidence as to what use the land was put to. Though the third defendant would say that he raised certain mango and other trees, there is absolutely no acceptable evidence, either oral or documentary, to prove that he was really cultivating the lands. It may be that he was taking the usufructs from the trees said to have existed on the suit land all these days. But the mere possession by the, third defendant of the suit property cannot be said to be adverse to the other sharers. As pointed out by Natesan, J., in Ameer Bibi v. Chinnammal : AIR1968Mad83 , in cases of co-owners there is unity of possession, that is, possession of one of the co-owners is possession of all of them and in order that possession of any one becomes adverse against others there must be something more than mere exclusive possession or occupation by such a person and the nature of possession by one co-owner to become adverse and bar the rights of other co-owners must be such that one can infer from it an intention by such person in possession to keep out the others in assertion of an exclusive and hostile title in himself to the property. In this case there are no materials to show that the third defendant dealt with the suit property as his exclusive one to the knowledge of all the other sharers, until he attempted to alienate the property to third parties just before the suit and his possession accompanied by any act which can amount to an ouster or giving notice to his co-sharers that his possession is adverse, cannot be construed as adverse possession. I am, therefore, in entire agreement with the view taken by the lower appellate Court that the third defendant has not perfected title to the suit property by adverse possession.

11. In Second Appeal No. 414 of 1966 filed by the 12th defendant the question as to whether he is entitled to the benefits of Section 41 of the Transfer of Property Act has to be considered. For a transferee to invoke the equitable principle contained in Section 41 of the Transfer of Property Act, he must satisfy four essential conditions : (1) that his purchase was from an ostensible owner of a property, with the consent express or implied of the real owner; (2) that he is a bond fide purchaser for value without notice of the title of the real owner; (3) that he made due and reasonable enquiries to ascertain that the transferor had the requisite power to make the transfer; and (4) that he has acted in good faith. It is true that the case of the 12th defendant in the written statement was that he has purchased a portion of the suit property from the third defendant who was held out to be an ostensible owner impliedly by the other sharers for a long number of years, that he made due enquiries and was satisfied that the third defendant had the requisite power to deal with the property, and that he has acted in good faith and bona fide in having purchased the property from the third defendant who has been in undisturbed possession of the property ever since the date of death of his father. But the 12th defendant did not examine himself nor did he examine any other witness on his behalf to establish those averments made in the written statement. As it is, the 12th defendant's averments that he has acted in good faith in purchasing the property from the third defendant and that he is a bona fide purchaser without notice of the third defendant's defect in title to the entirety of the property, and that he made sufficient enquiries and scrutinised the affidavits given by the eldest brother of the third defendant in support of his claim that he has acquired the property under an oral gift from the father, stand unproved. It is well known that the averments in the pleadings will not amount to actual proof of the same. Therefore, unless the 12th defendant has adduced acceptable evidence at the trial that what he has averred in his written statement is true, the Court cannot go by the mere averments in the written statement and uphold his claim on the basis that the conditions requisite for the applicability of Section 41 of the Transfer of Property Act had been satisfied in this case. It is for this reason that the lower appellate Court states:

The 12th defendant avoided the witness box and did not make himself available for cross-examination by the plaintiff to find out what reasonable care he took to ascertain that the third defendant had power to sell and on what basis he acted in good faith so as to entitle him to claim the benefits of Section 41 of the Transfer of Property Act.

Normally the onus is on the 12th defendant to establish that he is entitled to the benefit of Section 41 of the Transfer of Property Act, and I agree with the lower appellate Court that he has not discharged that onus by adducing necessary evidence that he took all due and necessary care to ascertain whether the third defendant had the requisite power to transfer. The learned Counsel for the 12th defendant however contends that even though the 12th defendant has not adduced any evidence apart from the averments in his written statement, it can reasonably be assumed that he made due and reasonable enquiries before he purchased the property by paying a huge amount of Rs. 11,097 and that the averments in the written statement not having been controverted by the plaintiff by filing a reply statement, those should be taken as having been admitted by the plaintiff. I am not inclined to accept that the averments in the written statement could be taken as the basis of the 12th defendant's claim to have the equitable relief under Section 41. The 12th defendant has stated therein that he saw the patta given in favour of the third defendant and also the mortgage executed by him in relation to the property. He also found that the third defendant has been in exclusive possession of the property without any question or interference by the other sharers and that from all these facts he was reasonably led to believe that the third defendant was the true and exclusive owner of the property. But the written statement is not specific as to which patta the 12th defendant saw at the time of his purchase. The sale in favour of the 12th defendant by the third defendant was under Exhibit A-10. dated 9th December, 1960. The 12th defendant should have been aware that the suit lands are situate in an erstwhile estate--Adayar Zamin from the patta Exhibit B-5 of the year 1944, and that the third defendant's title if any could arise only if he gets ryotwari patta under Madras Act XXVI of 1948. Naturally the 12th defendant could have called for the patta issued by the Settlement Authorities under that Act. As a matter of fact it is found that though at the time of the preliminary enquiry by the Settlement Enquiry Tahsildar patta was directed to be granted in March, 1959 under Exhibit B-6 to the third defendant, later, on objections taken by the other sharers a joint patta has actually been issued under Exhibit B-7 dated 25th May, 1960, in favour of all the sharers. It may be that the 12th defendant merely proceeded on the basis of the third defendant's possession of the suit property all there years and also the affidavit and letter given by his brother as proof of the third defendant's title. If the affidavit given by the eldest brother was taken as the basis of the third defendant's title by the 12th defendant, he should be taken to have been negligent in that he did not insist on such letters being given by the other sharers also. The only other factor that might have induced the 12th defendant to think that the third defendant was the real owner is the factum of possession. But though possession is material to find out whether the third defendant was an ostensible owner with the implied consent of the other co-owners, that alone is not conclusive and final. The learned Counsel relies on the decision in Beyas Singh v, Ramianam : AIR1961Pat16 , in support of the plea that the 12th defendant has taken sufficient care and caution so as to enable him to invoke Section 41. The learned Judge in that case stated:

The care required of a transferee under the third condition mentioned above must be the kind of care which an ordinary man of business is expected to take. If the ostensible owner is in possession of the property and he also produces the title deed, the transferee cannot be expected to make any searching enquiry in the absence of any ground for suspicion that the transferor may not been the real owner.

But the same learned Judge has stated later that:

the standard and nature of the necessary enquiry by the transferee must, therefore, vary according to the different circumstances of each case.

As pointed out by their Lordships of the Judicial Committee in Ramcoomar Kondoo v. McQueen (1872) I.A. (Supp.) 40:

the circumstances which should prompt enquiry may be infinitely varied; but without laying down any general rule, it may be said that they must be of such a specific character that the Court can place its finger upon them, and say that upon such facts some particular enquiry ought to have been made. It is not enough to assert generally that enquiries should be made or that a prudent man would make enquiries....

The learned Counsel also referred to the decision of a Division Bench of this Court in Sethumadhava Ayyar v. Bacha Bibi 111 I.C. 539 : A.I.R. 1928 Mad. 776, where it was expressed that the ordinary standard of diligence required for ascertaining whether the transfer or has power to transfer is calling for the title under which he claims and inspecting the title deeds and that if in the document itself produced as the title deed for the inspection of the transferee there is any indication, anything to put the transferee on notice or enquiry, with regard to the existence of some other document having regard to which any infirmity in the title of the transferor may be regarded as indicated, then the matter might conceivably be otherwise and that the reasonable care prescribed by Section 41 should have reference only to the reasonable care to see whether by the terms under which the ostensible ownership itself is constituted and power to transfer is given or possessed. But as already stated we have no evidence in this case of caution taken or the enquiry made by the 12th defendant at the time of his purchase under Exhibit A-10. It is not possible for the Court to conjecture or surmise as to what should have happened or what would have been done by the 12th defendant at the time of the. purchase. I therefore feel inclined to accept, the view of the lower appellate Court, that the 12th defendant is not entitled to the equitable relief under Section 41 of the Transfer of Property Act.

12. However, it cannot be disputed that the 12th defendant will have the equitable right of having the land purchased by him allotted to the share of his vendor as far as it is practicable at the time of the division and passing the final decree.

13. The result is, both the second appeals are dismissed, but, in the peculiar circumstances of this case, without costs. No leave.


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